In Korean legal method, as in German one, the focus is on the application of written law, unlike in the Anglo-Saxon one focusing on precedence. Legal methodology offers not rigid rules, but methodological guidelines for establishing the law. It accompanies judicial decisions and evaluates their argumentative justification. Esser emphasizes the judge’s preconceptions in establishing the law, but this approach contradicts the constitutional principle of binding force and is therefore considered methodologically problematic. Neumann, in contrast, proposes replacing legal methodology with argumentation theory, namely: replacing method with reasoning. Although Korea’s legal methodology is similar to that of Germany, it lacks a close connection between theory and practice. Judges ignore doctrinal opinions and rely on teleological interpretation, which jeopardizes legal binding force and the separation of powers – due to weak legislative techniques.

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Kritische Betrachtung über die juristische Methodenehre in Korea – anhand der Entscheidungen des Obersten Gerichts

  • Young Whan Kim

摘要

In Korean legal method, as in German one, the focus is on the application of written law, unlike in the Anglo-Saxon one focusing on precedence. Legal methodology offers not rigid rules, but methodological guidelines for establishing the law. It accompanies judicial decisions and evaluates their argumentative justification. Esser emphasizes the judge’s preconceptions in establishing the law, but this approach contradicts the constitutional principle of binding force and is therefore considered methodologically problematic. Neumann, in contrast, proposes replacing legal methodology with argumentation theory, namely: replacing method with reasoning. Although Korea’s legal methodology is similar to that of Germany, it lacks a close connection between theory and practice. Judges ignore doctrinal opinions and rely on teleological interpretation, which jeopardizes legal binding force and the separation of powers – due to weak legislative techniques.